Posted by Lawrence Solum at 3/29/2003 03:52:19 PM

. . . to the position, taken by the Solicitor General of the U.S. Dept. of Justice in Chavez v. Martinez . . . that the police are free to disgregard Miranda. [She] suggest[s] that the privilege against self-incrimination is best viewed as a ban on certain official conduct outside of a criminal trial, not as an evidentiary rule. The Supreme Court in Kastigar v. United States, by blessing prosecutorial grants of immunity pursuant to statute, did not intend to extend this same authority to police officers in back rooms. [The paper] further argue[s] that a deliberate violation of any right invoked under Miranda should give rise to a viable civil rights claim. Scholarly attacks on Miranda are simply misdirected unhappiness with the privilege itself. Finally, [it] suggest that the tragic events of September 11, 2001, do not warrant the abandonment of the privilege in ordinary domestic criminal cases.

Based on our study of case screening practices in New Orleans, we believe that pervasive harm stems from charge bargains due to their special lack of transparency. Charge bargains, even more than sentencing concessions, make it difficult after the fact to sort out good bargains from bad in an accurate or systematic way. We do not believe that active participation by even the best defense counsel can solve this problem.

A number of scholars have suggested that vigorous enforcement of the tax laws may be counterproductive because it may suggest that noncompliance is the norm. This article argues, in part, that enforcement and a compliance norm are not inconsistent but rather are complementary. In other words, enforcement can buttress norms-based appeals for compliance. To support this argument, the article draws on an array of empirical evidence from both experimental "games" conducted in the laboratory and field experiments involving taxpayers.

In the original position meta-bargain among political agents, each can achieve higher expected utility by binding himself to a unanimity rule, rather than risk the chance of being an excluded party in later period-by-period bargains. This argument is illustrated for a three-agent, constant-sum game where there are three reasonable voting rule options: 1) dictatorship rule; 2) majority rule; or 3) unanimity rule. Given concave utility functions, by Jensen's Inequality, each player would prefer the coalition inclusion guaranteed by the unanimity rule as opposed to the possible exclusion inherent in the other two options. However, once transactions costs are considered, a unanimity rule will create situations where all voters might agree in principle to a policy proposition, yet they will fail to reach a unanimous consensus.

--Privacy. ICANN faces a cluster of issues that revolve around the Internet and privacy. Of course, ICANN itself has responsibility for only a tiny slice of the Internet privacy problem. One part of that tiny slice is WHOIS, the system that allows anyone (you or me) to look up the name and address of anyone who registers a website. Many website registrants don't really give informed consent to making this personal information very public, although they do give formal consent. ICANN circumvented this issue in connection with the WHOIS task force recommendations, but this issue and others like it must be faced.
--Root Expansion. Sooner or later ICANN must face the BIG policy question of root expansion. This would be a suitable topic for a task force that includes members from outside ICANN's internal structure, e.g. an economist. (On his way out of the airport, Vint Cerf collared me and told me that he needed to have a conversation about economists with me. OK, Vint!
--The Digital Divide. I am convinced that ICANN should stay out of the general Digital Divide issue, but ICANN is inevitably involved in the particular DD issues that are inevitably raised by the ICANN's resource allocation responsibilities for the name and number space. All of the gTLDs are first world focused. IDN (Internationalized Domain Names) creates the possibility of new gTLDs using IDN. One of ICANN's highest priorities should be IDN gTLDs for LDCs. How's that for acromania! In plain English, ICANN should faciliate the creation of new .coms, .orgs, etc. that use characters sets other than the very restricted set--Roman alphabet, Arabic numeral plus hypen and underscore--that is currently permitted. This is especially true for LDCs (Less Developed Countries). If someone doesn't jumpstart IDN gTLDs for LDCs, they will be a long time coming. The IDN standard has been formulated, so ICANN needs to move on this issue.

To answer, we need to make two distinctions. The first is the distinction between descriptive legitimacy—the social fact that people believe some person or institution has the moral right to rule—and normative legitimacy—genuinely having the moral right to rule. These are two different notions, and we need to be clear about when we’re using one, when we’re using the other, and what, if anything, connects the two.
The other distinction is between the word legitimacy, the concept or idea of legitimacy, and particular conceptions of legitimacy, the content of the concept. “Fine word, legitimacy!” Edmund says with irony. It is a fine word, but we need to trace its changing senses over time to distinguish the word from the idea or ideas it expresses. The same word, of course, can come to refer to different concepts—a “civil right” is not a polite uppercut to the jaw—and different words—“authority” is the closest cousin here—can refer to the same concept. I have, a moment ago, offered a rough account of the concept by saying that legitimacy is the moral right to rule, but if we understand conceptual analysis as the exercise of marking off apt boundaries for fruitful argument so that we neither talk past each other nor beg the question, we may discover that this rough draft needs some editing. Finally, the concept or idea of legitimacy can be filled out in different ways. We can both agree that we are talking about the same idea, legitimacy, but disagree about its content: criteria for how you get legitimacy and what it gets you.

In this Article, we challenge the "monolithic” view of Congressional control over delegated power, which assumes that oversight committees will enforce the wishes of an enacting majority. In contrast with this prevailing view we argue that Congress consists of rivals who compete for control over power delegated to agencies. Individual committee members with access to oversight tools vie for control over agencies, both with each other and with past enacting majorities, to further their own interests. Contrary to the conventional understanding, we therefore argue, committee members sometimes defy majority preferences rather than reinforce them.

Until World War II, the United States was the only legal system to have active judicial review, and it was also the legal system within which a functionalist or pragmatist rather than a formalist approach to law generally was best established in legal education, commentary, and judicial discourse. What is the connection between these two phenomena? One possibility is that judicial review furthers a "statesmanlike" and hence a flexibly pragmatic approach to legal questions. Such a story can plausibly be told about how over the last half century legal systems around the world have gotten more pragmatic in their approach to law generally, as they have adapted to judicial review. A similar story can be told about American legal history - that John Marshall in establishing judicial review also inaugurated the Grand Style that led on to Cardozo and Llewellyn by direct inspiration. But on examination the latter story doesn't hold up. If judicial review led to pragmatic jurisprudence in this country, it was by reaction, not direct inspiration. The legal Progressives, who were skeptics about judicial review, effectively joined into a single "assault on formalism" their critiques both of Langellian private-law conceptualism, and of the aggressive classic-liberal constitutional doctrines of the Lochner era. These two tendencies were only loosely related, as we can see when we analyze the elements that lead us to describe a body of thought as formalist. But the Progressives' successful conflation of them into a single impressive bogeyman helped motivate the establishment of the functionalist orthodoxy that was articulated over the course of the twentieth century by Holmes, Thayer, Gray, Pound, Cardozo, Brandeis, Corbin, Wigmore, Llewellyn, Fuller, Traynor, Posner, and the many other pragmatist legal thinkers who have made up the mainstream of modern American legal thought.

Scarcity. Once again, we heard the argument that there is no need to auction the gTLD name space (new .coms, etc.), because there is no real scarcity! This conversation (which I have had over and over again) is so frustrating. The notion that there is no scarcity in the name space is, of course, utterly ridiculous. Each name string is unique. If I own the right to operate the .com TLD, you can't own it. Each name string is a scarce resource in the economic sense, and anyone who disagrees doesn't understand the economic concept of scarcity. Of course, there are lots of supersmart people who make this mistake. Why? It's hard to know, but I suspect that it is because they are engineers and they look at the question as an engineering question. There is no shortage of possible gTLD strings in the engineering sense. If you allow strings of 25 characters in length, there are 38 to 25th power of available strings--and of course that is a vast number. More than enough from the engineering point of view. But not all strings are created equal. A top-level domain named .sk3kk99xs2 would be worthless. A top-level domain named .auto or .car might be worth quite a bit. If there were not scarcity in the name space, an auction would produce zero revenues, but the very same people who assert there is no scarcity also concede that some strings would have high prices in an auction! Amazing!
Short Run Focus The participants in the ICANN process, quite naturally, have a very short-run focus. They are (and should be) interested in making money. So the parties that are the most interested in expansion of the root (i.e., in having new TLDs) are those who have applied to ICANN in the past and not yet been granted their string--.mobile and .web were represented Monday night. So the stakeholders and wanna-be stakeholders want ICANN to approve their new gTLDs right now or as soon as possible. They are in favor of gTLD auctions, if it will speed up their getting their gTLD and opposed to auctions if auctions will slow down their getting their gTLD. Of course, many existing stakeholders have an interest in preventing expansion of the root. Verisign (the operator of the .com registry), in particular, may have an interest in blocking new unrestricted gTLDs that would compete with .com. The interaction between these groups makes it very difficult to get bottom-up consensus on an auction proposal.
What is Value Another question that is frequently raised about gTLD auctgions is: "Will the gTLDs that win the auctions have value?" Or will such gTLDs "add value?" Huh? Of course, it is possible that firms will bid for value-less gTLDs, but the whole point of a market is to insure that resources are put to their most valuable use. The gTLDs that are established as a result of an auction are exactly the gTLDs that the market tells us are most likely to add value. The "value added" question seems, at bottom, to be based on the assumption that someone (the questioner, ICANN's board) can do a better job of estimating value than the market. Sometimes this is the ending point of the conversation, but some interlocutors seem to have another idea in mind. They seem to believe in some concept of intrinsic value, i.e. value that cannot be measured by prices. Well maybe. But here is the problem. No one agrees on what constitutes intrinsic value. I suspect that in the context of new gTLDs, the idea of intrinsic value sometimes boils down to "value from the point of view of a network engineer." If so, then: (1) the market can account for this kind of value, because it affects costs and benefits, and (2) the Internet is for end users, not for network engineers.

This article argues that authoritarianism is an inherent structural tendency of democratic regimes. The article is written as a chapter for a book, Out of and Into Authoritarian Law, that explores the revival of authoritarianism tendencies in certain new constitutional democracies of Eastern and Central Europe. The article locates one structural tendency toward authoritarianism in the techniques by which those currently holding political power manipulate regulation of democractic structures with the aim and effect of suppressing political competition.

The Pareto principle is often considered self-evident, particularly by economists. On close examination, however, it is much more problematic than is commonly believed. Preference satisfaction is only imperfectly related to values such as individual welfare and autonomy. Moreover, preferences can change during transactions or because of shifts in legal regimes, presenting knotty conceptual difficulties. Finally, complete adherence to the Pareto principle may be incompatible with other, equally appealing ethical standards. As Sen showed, the Pareto principle is inconsistent with at least some forms of libertarianism.

This essay argues that the decline of public identities over the past three decades, combined with increasing secrecy in the process of identification, is the root cause of the burgeoning problem of identity theft. Identity theft is easy because impersonation increasingly takes place in private transactions that are invisible to the victim.

The basic point I am trying to make is not, as Stuart suggests, that Scalia is necessarily engaged in logical contradiction. There are certainly ways to strike down affirmative action laws even given the congressional history, and I talk about them in the casebook. Rather, my complaint is that Scalia is being hypocritical, because he has never, to my knowledge, discussed the historical issues, even though they are easy to learn about, and even though he states, to any one who will listen, that original understanding is the touchstone of constitutional interpretation. My problem with Scalia is that he speaks with the arrogant assurance of one completely convinced that he is in the right when he has not done the necessary research to justify his conclusions about the constitutionality of affirmative action.

Many scholars, alert to the myriad problems raised by the fragmentation of property rights, have closely examined what has become termed "anticommons" property regimes. That is to say, when multiple owners, each possessing a right to exclude others from a scarce resource, are prevented from maximizing his privilege of use, the resource may be wasted; this is a problem known as the Tragedy of the Anticommons.

Constitutional discourse has perhaps never been more popular, nor more comprehensively challenged than it is today. The development of new constitutional settlements and languages at state and post-state level has to be balanced against the deepening of a formidable range of sceptical attitudes. These include the claim that constitutionalism remains too state-centered, overstates its capacity to shape political community, exhibits an inherent normative bias against social developments associated with the politics of difference, provides a language easily susceptible to ideological manipulation and, that, consequent upon these challenges, it increasingly represents a fractured and debased conceptual currency. A rehabilitated language of constitutionalism would meet these challenges through a version of constitutional pluralism. Constitutional pluralism recognises that in the post-Westphalian world there exists a range of different constitutional sites and processes configured in a heterarchical rather than a hierarchical pattern, and seeks to develop a number of empirical indices and normative criteria which allow us to understand this emerging configuration and assess the legitimacy of its development.

[A]mending the disability definition and establishing an exclusive list of covered impairments and condition categories associated with systematic discrimination would offer both fidelity to the statutory goal of corrective justice and workability as a legal instrument. It would promote inclusion of those who have been traditionally excluded and redistribution of resources to the most needy and deserving. It would provide more lucid guidance to plaintiffs who must decide whether they have viable discrimination claims, to employers who wish to avoid violations of the law and potential litigation, and to the courts. The new definition of disability would replace subjective assessment of the plaintiff’s functionality level with a much more concrete and accessible proof mechanism.

In thinking about the very institution of judicial review, it is appropriate to take into account the current and likely future staffing of the judiciary, the current and likely future staffing of the other branches of government, and the current and likely future substantive proclivities of the population itself. Although institutions created at one time cannot easily be changed when political conditions change, this friction and path-dependence is merely something to be factored into a larger equation, and that equation is one in which it is entirely appropriate to conceive and design institutions, including the institution of judicial review, to serve political, social, moral, and ideological ends.

However, we believe that in the long run a more “radical” departure from current theory will become necessary, radical in the sense that it goes beyond the Quadrant I beliefs-desires model, and attempts to explicitly represent multiple brain mechanisms. Standard economic theories rely on an implicit assumption that controlled, cognitive processes (quadrant I of figure 1) are the key to economic decision making. Our theme in this paper is that radical models should respect the fact that brain mechanisms combine controlled and automatic processes, operating using cognition and affect. The Platonic metaphor of the mind as a charioteer driving twin horses of reason and emotion is on the right track—except that cognition is a smart pony, and emotion a big elephant.

Many left-of-center constitutional law scholars are caught in a trap of their own design. They have devoted their careers to glorifying the Warren Court, only to witness its conservative successors reject its liberal activism but embrace its arrogance. These academics now face the daunting task of explaining why federal judicial hubris is good only when it serves their own political and ideological agenda. This intellectual problem traces back to the 1960s, when law professors began to develop elaborate justifications for two critical ideas popularized by the Warren Court.

Possible world semantics is a precise and illuminating way of talking about modal concepts, such as possibility and necessity. “Possible world” is the name philosophers give to a possible state of affairs. Frequently, when legal theorists speak of feasiblity or possibility, their statements are ambiguous. Possible worlds semantics provides a way of translating ambiguous talk about possibility into much more precise expressions. Here is how it works. We translate the modal assertion, “H is possible,” into the statement “H is true in some possible world.” In other words, if I say, “It is possible that Griffin is a Yankee’s fan,” that translates into “Griffin is a Yankee’s fan in some possible world.” Possible worlds semantics then allows us to distinguish the various senses in which we say that “H is possible,” or “J could have happened.” Let’s take the broadest notion of possibility, logical possibility. “J is logically possible” translates to “J is true in at least one possible world in which there are no logical contradictions.” Logicians and philosophers use the word “accessibility” to define sets of possible worlds with respect to various senses of possibility. Thus, the possible worlds in which there are no logical contradictions are logically accessible. The possible worlds that obey the laws of science are nomologically accessible. The possible worlds that are consistent with everything that we know are epistemologically accessible. The possible worlds that share the history of the world up to the present moment are historically accessible. The possible world that we now inhabit is the actual world. The worlds that are historically accessible from the actual world are the possible worlds that share the history of the actual world up until now.

Why does illegal trade often flourish without formal enforcement, but sometimes fail? Why do illegal trade-reducing policies often fail? Why do States often appear to tolerate illegal trade? A model of trade with cops and robbers provides answers. 'Safety in numbers' is a key element: the equilibrium probability of successful shipments is increasing in trade volume. Even without conventional fixed costs, safety in numbers implies scale economies which can explain the absence or robustness of trade subject to predation. Spilling over between markets, safety in numbers implies that illegal trade can foster legal trade and State revenue.

[C]onstitutional statutory synthesis is as good as or better than originalism from popular consent and superior competence premises. This is true with intentionalist theories because original intent is often unknowable and difficult to extrapolate through time, inviting criticism of judicial policymaking. In cases such as Alcoa, the New Deal constitutional change would provide a stronger basis for the changes to § 2 doctrine. Textualism is often indeterminate too, as BFP demonstrates. Looking to changed constitutional norms is less subjective and therefore more restrained than deeming one interpretation of “reasonably equivalent value” more plain than another.

Larry Tempkin (Rutgers) presents Egalitarianism defended.
John Gardner and Elisa Holmes (Oxford) deliver Two concepts of law.
Samantha Besson (Oxford) gives us Conflicts of rights.

First, Rick hasn’t produced any arguments for this proposition.
Second, the experience of other legal cultures with constrained judiciaries suggests that judges can decide according to law. (Rick and I can argue about examples if he wishes to press this point.)
Third, it seems unlikely that there is any inherent feature of human psychology that would preclude judges from deciding according to law.

The Internet has been mythologized, and the image of the Internet as a separate realm, somehow exempt from legal regulation and the operation of market forces is still a powerful and compelling ideal in the minds of many. Although this romantic picture may have an element of truth, there is much to be learned by stepping back and looking at root service as an ordinary service, provided by an ordinary organization, subject to the familiar laws of supply and demand. How can the provision of that service be organized so as to provide the greatest benefit of the public? How can the root be put to its highest and best use?

Professor Ted Seto (Loyola Marymount) presents on evolution and intergenerational justice.
Alan Schwartz (Yale) does Understanding MACs and MAEs.

Between the 1830s and the early 1860s, there were well over 150 violent incidents involving congressmen, an ongoing series of threats, brandished pistols, challenges and duels, canings, fistfights, all-out brawls, and the occasional shooting. In the 1850s alone, there were at least 45 such rencontres; given the total number of days spent in session during that decade, this averages out to roughly one incident per month. Some of these incidents have been studied individually, anecdotally, or in small clusters. Many seem to have fallen through the cracks of the historical record—in several cases (particularly those that involved guns on the floor of Congress), because witnesses agreed not to discuss it. But the larger story of this pattern of political violence and its broader implications has not been explored—an ironic oversight given that many witnesses considered such violence to be the norm rather than the exception. As Benjamin Brown French, assistant clerk of the House, wrote to his sister in January 1839, “This session is like all other sessions that I have seen—except there has, as yet, been no fighting.”

--Gerry Cohen is one of the most interesting figures in contemporary political philosophy. I first encountered his work in his justly famous book Karl Marx's Theory of History: A Defence. Most recently, Cohen is the author of If You're an Egalitarian, How Come You're so Rich? . Cohen's attack on Rawls's position that the basic structure is the subject of justice has given rise to a whole cottage industry, and this is surely one of the most interesting debates in recent political philosophy. Once again, a coup for Texas.

--Bernard Williams is the author of Moral Luck, Ethics and the Limits of Philosophy, and most recently Truth and Truthfulness. He is a giant of contemporary ethics. And because this event is at University College, Dworkin and Williams will be engaging in pyrotechnics of the very highest order. And by the way, The Philosopher's Magazine has an interview with Williams here.

we already live in an era of both liberal and conservative judicial activism. We have a judiciary that is just another political branch.

And I responded:

Rick is unduly pessimistic about the possibility of realizing or restoring the rule of law.

And if Rick is right that the judiciary is irretrievably politicized:

Why have nine unelected individuals as a council of review?

Now Rick replies again:

Fair enough, and scholars like Mark Tushnet have made the argument against judicial review along precisely these lines. As for whether "text, original meaning and the doctrine of stare decisis" are significant constraints, consider the following two questions to be determined by the new Supreme Court Justice applying neutral principles:

1. You are back in 1966 before Harper v. Virginia Board of Elections: Should a poll tax be declared in violation of the Equal Protection Clause, which provides that no state shall deprive any person of equal protection of the laws? Original meaning and stare decisis suggest the poll tax is constitutional. (The best reading of history is that the equal protection clause was not meant to apply to political rights, and the earlier Breedlove case upheld poll taxes.) All but four states have overturned poll taxes.

2. It is 1992 before Casey. You believe Roe v. Wade was wrongly decided, but you believe strongly in the principles of stare decisis.

How should you rule?

Egads, hypos! I became a law professor so I wouldn't have to answer these ever again.

Let's Back Up, Way Up
Rick has more to say, which I will get to in just a bit, but for now, let's back up and frame the debate. Rick and I disagree about some of the most fundamental issues in legal theory. So first let me define my position.

Me: Neoformalism
If you have a lot of frequent blogsurf miles, you will know that I am a neoformalist. What does that mean? Here is one way of thinking about contemporary neoformalism. In Hard Cases Ronald Dworkin argues that in a hard case, a judge must render the decision that best fits and justifies the law. Dworkin believes that in a hard case, the criterion of fit doesn't do much of the work. The judge looks at the possible outcomes (decision plus rationale) and rules out those outcomes that are inconsistent with the legal topography, the woof and warp of the law as a whole. I don't want to try to explicate the subtleties of Ronnie's elegant conceptual edifice here, so let's just say that Dworkin Prime (Dworkin's counterpart in a possible world that makes it easier for me to make my point) . . . Let's just say that Dworkin Prime believes in the loose interpretation of the criterion of fit. Outcomes must fit the law as a whole, but only loosely. Neoformalism has a different picture. A neoformalist judge tries to exhaust the criterion of fit, before moving to the criterion of justification. (Of course, the complete neoformalist story includes a lot more detail, e.g. the hierarchy of authority, and in consitutional cases, a story about the relationship between text, structure, original meaning, tradition, and precedent). In other words, the judge is obligated to get everything possible out of the effort to decide which outcome best coheres with the existing legal doctrines, before she can move on.

Rick: Neorealism
So what is Rick's position?

On the tough questions, I just don't see text, original meaning, and the doctrine of stare decisis as either dispositive or necessarily the only correct bases upon which to decide such cases. Such decisions are inherently political.

It would be unfair to pin Rick down to a general jurisprudence based on these remarks. (So, he has plenty of wiggle room.) But, it looks like Rick's position is a very familiar one. He is a neorealist or neoinstrumentalist. When he says "as either dispositive," I think he is making a descriptive claim--that existing legal materials do not determine the outcome of the case as a matter of the constituitive conventions that specify what can count as a correct legal outcome. When Rick says "the only correct bases upon which to decide cases," I think he is making a normative claim--that, even if the legal materials could resolve the case, it doesn't follow that they should resolve the case. And when he says: "Such decisions are inherently political," he is moving close to the central thesis of critical legal studies: Law is Politics! Of course, that is precisely the position that I am arguing is neither necessary (as a matter of fact) nor desirable (as a matter of political and legal philosophy.)

Back to the Hypos. Rick's Strategic Move.
This is wonderful. I get to explain my answer, before I have to commit to answering the hypos. Think how much frustration this would have avoided, if you could have done this as a law student. So Rick's hypos are very cleverly crafted. Hypo number one is the poll tax, and hypo number two is abortion. Rick frames hypo one so that the neoformalist has to say that the poll tax is constitutional, and hypo two so that the neoformalist has to follow precedent and reaffirm Roe v. Wade. Here is why this is such a clever argument. Most readers will think that the rule of law should give way in one of these two cases. Roughly, liberals will think that any legal theory that could uphold the poll tax is just intolerable, and conservatives will think the same about any legal theory that would require adherence to Roe on stare decisis grounds. So now, I am in a real dilemma. If I bite the bullet and say, "So be it, that is what the rule of law requires," then I will have a position that runs contrary to strongly held beliefs of both the right and the left. But if I try to argue that there are ways of getting to the desired result in either of these cases, then Rick is ready to pounce. My arguments will necessarily be brief, because this is a blog. Rick will be able to show that equally plausible arguments could be made on the other side. And notice, that if I go consistently left or right--saying poll tax bad, Roe good or vice versa--then Rick really has me, because then it looks like I am using neoformalism to rationlize the results that I really prefer for reasons of politics and ideology. Then, he will say, "See! Law is politics, after all." He would tell you, "Lawrence thinks he is a neoformalist, but he is really an instrumentalist--just like the rest of us."

Sweat
So now, I am sweating. What to do? Here is the obvious countermove: I can fight Rick's set up. I could try to show through long and complex arguments that the rule of law really did require that the poll tax be struck down, and/or that the rule of law really does require that Roe be reversed. But this strategy cannot work in the long run for two reasons: (1) If I fight off these cases successfully, producing knock-down arguments that get me out of these specific hypos, Rick will always be able to come up with more. And if I fight off the new hypos, then Rick can step back, point to the pattern of my arguments, and say, "Lawrence's arguments look neutral, but if you step back, you can see the pattern--which is really ideological." (2) Rick can always turn the cases from real cases into hypos, but suppose that your neoformalist approach really did require upholding the poll tax or adhering to Roe on the basis of precedent. Fighting the hypos is a losing strategy.

Biting the Bullet
So, it seems I must bite the bullet. I am forced to say that if the rule of law really does require adhering to Roe but that Harper v. Virginia Board was wrongly decided, then that is the right thing to do. If you disagree with these outcomes, then you can go through the normal political process--legislation to ban the poll tax and a constitutional amendment to overrule Roe. This may be hard, but who said that the right thing is easy. Readers may ask, "Why is the rule of law so important? Why should we want judges to decide according to law, rather than according to their ideologies?" (There is another version of the second question, "Why should we want judges to decide according to law, rather than acording to my ideology?," where each reader substitutes themselves as the referent of the possessive pronoun "my." But this second question answers itself, because no one could expect their fellow citizens to accept a principle of judicial decision that made one person the dictator.) This is not the right place to answer that question; I will post separately on that topic within the next few days, and then edit this post so that the link appears here.

An A Ha Moment
And now I see that I really didn't need to sweat at all. Because Rick's argument is internally inconsistent. On the one hand, he wants to argue that in the real important cases, the decision must (as a descriptive matter) be political. On the other hand, as he sets up the poll tax question, "Original meaning and stare decisis suggest the poll tax is constitutional." But you can't have it both ways. I wasn't really in a dilemma, but I was right to bite the bullet.

Rick's Ultimate Position
One of the reasons I was concerned about Adam Cohen's attack on Justice Deborah Cook is that I believe the Rule of Law is potentially fragile. Interestingly, I think that Rick may agree about this. He is one of the leading experts on election law, and if any case shows the fragility of the rule of law, it is Bush v. Gore. Rick continued in his reply to me:

I believe there are ways for the Supreme Court to constrain itself, as developed in my book. The arguments depend upon both liberal and conservative activists pulling back from the brink of mutually assured destruction through writing more minimalist decisions.

I think I agree, but I am not sure. What is a minimalist decision? Consider three possibilities:

1. Minimialist decisions are decisions that that hew closely to the requirements of law. In the case, Rick and I are in agreement--at least with respect to election-law cases.

2. Minimalist decisions are decisions that interfere minimally with the political process. In this case, Rick and I disagree, at least potentially. The rule of law is not the rule of politics. Sometimes the law requires interference with the political process; sometimes it doesn't.

3. Minimalist decisions are decisions that compromise between the competing ideologies of the Justices. We might imagine this position as involving an intertemporal bargain between current and future versions of the Court. A norm might emerge to the effect that, "We won't go too far in our favored direction while we control the court, and, in exchange, you won't go too far when you control the court." In this case, our disagreement would be profound.

Undoubtedly, I haven't done justice to Rick's true position. But however he formulates minimalism, I think it is fair for me to throw Roe v. Wade back at him. What is the minimalist position in Roe?


Post Script
Timothy Sandefur of the Pacific Legal Foundation writes that the most recent issue of Nexus is a symposium issue on the degree to which political ideology should matter in the judicial confirmation process, and that all of the articles are online here. Contributors include Tim, Erwin Chemerinsky (USC) and Roger Pilon (Cato).
Post Post Script
Rick Hasen replies here and I whine about it here.